CHAPTER XIV

REGULATIONS OF SAFETY AND HEALTH

Section 1. The Police Powers of the States, 223-Sec. 2. Conflicting State Requirements, 225-Sec. 3. Federal Safety Appliance Act, 227-Sec. 4. Hours of Service Law, 229-Sec. 5. Twenty-eight Hour Live Stock Law, 231-Sec. 6. The Boiler Inspection Act, 231-Sec. 7. The Accidents Reports Act, 232-Sec. 8. Federal Employers' Liability Act, 233 -Sec. 9. Automatic Train Control, 234.

§ 1. The states, from the beginning of their jurisdiction, have asserted the right to regulate the activities of all citizens in the interest of the health, safety and morals of the people as a whole. Regulations of this character were held not to constitute a taking of property without due process of law if they were not arbitrary and were reasonably appropriate means of attaining a lawful end. In other words, even under our legal concept of the rights of private property, it has been recognized that the government possesses the superior right of interfering with the freedom of action of the owner in the use of his property, in so far as such interference is desirable in the interest of the public good. Thus in the famous Slaughter House Cases,' the right of the state to concentrate the slaughtering of live animals at a particular location in the city of New Orleans was upheld; and in the Oleomargarine Cases 2 the Supreme Court of the United States sanctioned state laws prescribing rules for the manufacture, marking and sale of butter substitutes.

Regulations of this character do not depend upon the same. principles as do regulations of railroad rates. As to the latter, the right of the public to regulate the charge depends upon the voluntary undertaking by the railroad corporation of common carrier service. The clear right to regulate the reasonableness of the charge is subject only to the limitation that the public may 183 U. S. (16 Wallace) 36.

Powell v. Penn., 127 U. S. 678; Plumley v. Mass., 155 U. S. 461; Schollenberger v. Penn., 171 U. S. 1.

not act to confiscate the property. But wholly regardless of the public nature of this character of activity, the public right to restrain the use of property so that it shall not be used to the injury of the general public, is unquestioned. Many aspects of the railroad service are subject to these so-called "police regulations," enacted under the so-called "police power" of the state. From the very beginning of railroad operation in this countrylong before the full scope of the public's right to regulate railroad rates was developed the states enacted, and the courts upheld, service regulations in the interest of health, safety and morals of the community. They were sometimes made directly by the state legislatures, in other cases by the municipal governments, which had been authorized by the state to enact them within the province of specified jurisdictions. Thus the municipalities made many regulations for the giving of signals by means of a bell or whistle on approaching public crossings. They fixed the rate of speed through the confines of the corporate limits of a municipality, and required the lighting of tracks and the maintenance of signboards and gates at crossings. Sometimes the presence of flagmen has been required. The legislatures of the states also enacted regulations dealing with certain phases of train service,in the South, for example, providing that separate coaches should be furnished for colored passengers. In many states provision

'In Erie R. R. Co. v. Public Utility Commrs., 254 U. S. 394, 410, the Supreme Court of the United States described the police power of the state as follows: "Grade crossings call for a necessary adjustment of two conflicting interests-that of the public using the streets and that of the railroads and the public using them. . . Being places to which the public is invited and that it necessarily frequents, the State, in the care of which this interest is and from which, ultimately the railroads derive their right to occupy the land, has a constitutional right to insist that they shall not be made dangerous to the public, whatever may be the cost to the parties introducing the danger. That is one of the most obvious cases of the police power. . . . It is said that if the same requirement were made for the other grade crossings of the road it would soon be bankrupt. That the States might be so foolish as to kill a goose that lays golden eggs for them, has no bearing on their constitutional rights. If it reasonably can be said that safety requires the change it is for them to say whether they will insist upon it, and neither prospective bankruptcy nor engagement in interstate commerce can take away this fundamental right of the sovereign of the soil."

Some of the earliest service regulation cases which the Commission considered had to do with these "Jim Crow" car laws. The principle was announced in 1887 and 1888, Council v. W. & A. R. R. Co., 1 I. C. C. 339, and Heard v. Georgia R. R. Co., 1 I. C. C. 428, and reiterated in 1907. Edwards v. N. C. & St. L. Ry. Co., 12 I. C. C. 247, that carriers

was made for safety couplers, for the heating of cars within specified temperatures, for the furnishing of drinking water and for the equipment of locomotives with electric headlights. These regulations were generally upheld except where the statutes or ordinances were so inartistically drawn and so ambiguous as to be void. In testing their validity the courts resorted to the same principles applied in a later day in passing upon legislative requirements for the protection of employees from dangerous machinery in all sorts of private manufacturing businesses. The determining consideration was not the existence of the common carrier obligations which the railroad corporation had assumed, but rather the fact that the public had a right to protect its citizens against any one using his property so as to injure others.

§ 2. Later on in the development of railroad regulation, the Federal government entered this field of service regulation, prompted to do so largely by the confusion arising from the conflicting nature of the regulations which adjoining states had imposed. That each legislature was left largely to its own judgment to determine what means was reasonably appropriate to the desired end meant that the requirements of the resulting legislation differed in many respects. The fact that different legislatures usually had different technical advisers, and were subject to different local pressure, added to the confusion. Prior to the enactment of the Federal headlight law, it was asserted that on a single railroad passing through several states, a locomotive might be required to change its headlight at each state line before it could proceed. One state required that drinking cups be furnished to passengers; another, on sanitary grounds, prohibited the furnishing of public drinking cups. This lack of uniformity of state regulations, and the ever-growing conception of the railroad corporation as a national enterprise, led to action by the Federal government. But the national government possesses no "police power" as this power has been defined by the

might not, in the accommodations furnished, discriminate between white and colored passengers paying the same fare. This holding was followed in Cozart v. Southern Ry. Co., 16 I. C. C. 226, 230; Gaines v. S. A. L. Ry. Co., 16 I. C. C. 471.

The right to segregate white and colored passengers has been upheld by the Supreme Court: Hall . DeCuir, 95 U. S. 485; L. N. O. & T. Ry. v. Mississippi, 133 U. S. 587; Plessy v. Ferguson, 163 U. S. 537; C. & O. Ry. v. Kentucky, 179 U. S. 388.

courts in respect to state actions. The police power is not one of the powers granted to the National government by the states. For the Federal government to enter this field, it was necessary to look to the plenary power under the commerce clause of the Constitution. The general rule governs that, in the regulation of interstate commerce, Congress has the right to adopt any means reasonably appropriate to the end of maintaining and fostering interstate commerce. After Congress had elected to make regulations in respect to safety appliances, hours of service, and even the liability of an interstate carrier for injury to its employees, the courts were inclined to uphold the regulations as appropriate means to the end of making the Congressional regulation of commerce between the states thoroughly effective.

So, although the action by the states and the action by the Federal government, in respect to service regulations concerning the safety of railroad operation and the health of the public and the railroad employees, depend upon different principles of constitutional law, the general effect of action by the state or by the Federal government is the same. But, because of this difference in principle, the litigation which has developed has primarily had to do rather with the conflict between the state and the Federal authorities than with the ultimate legality of the safety regulations. Out of this conflict there came the series of court decisions which extended the national jurisdiction. It was inevitable that the courts should hold-as they did in dealing with regulations providing specifications for platforms on cars placed at the ends of trains that whenever the national government legislated within this field, its regulation superseded prior state action, in so far as the latter had affected interstate transportation. The courts also held that, even in the absence of Federal legislation, the states, under the guise of enacting police regulations, could not impose undue burdens upon interstate commerce. The judiciary asserted the right to determine, upon review, whether or not such burdens as might be imposed, were in fact undue.2

The field of safety regulation is, then, a broad one; and, because the legislatures of different states have differed not only

1 Penn. R. R. Co. v. Pub. Ser. Com., 250 U. S. 566.

2 Illinois Central R. R. Co. v. Ill., 163 U. S. 142; Miss. R. R. Com. v. 1. C. R. R. Co., 203 U. S. 335.

as to the proper subject matter to be dealt with, but more particularly have differed as to the appropriate means of making the regulation, it has been inevitable, from the beginning, that ultimately the Federal government would occupy the entire field to the exclusion of state action. It would be destructive of efficient interstate operation for a single carrier to conform to all the different specifications set up by legislative discretion in each of the states through which it operates its trains. So there has grown up a great body of Federal statutory law prescribing standard requirements for safe railroad operation. The most important of these national laws are the Federal Safety Appliance Acts, the Hours of Service Act, the Twenty-eight Hour Live Stock Law, the Boiler Inspection Act, the Ash Pan Act, the Accidents Reports Act, and the Federal Employers' Liability Act.

§ 3. The first Federal Safety Appliance Act, which furnished the important precedents on which the other acts were largely built was a direct outgrowth of conflicting state action. Uniformity of equipment standards is almost prerequisite for the free interchange of cars. The first legislative action by a state requiring automatic couplers on railroad cars was by Connecticut in 1882. This was followed within ten years by statutes in Massachusetts, New York, Michigan and New Hampshire. The state legislation was enacted at a time when there were comparatively few cars in the country equipped with air brakes and automatic couplers. The annual report of the Interstate Commerce Commission shows that, in 1892, out of 1,215,092 railroad cars in the United States, only 241,411 were equipped with automatic couplers. The appalling loss of life from the use of link-andpin couplers on railroad cars, brought to the attention of Congress by the annual reports of the Interstate Commerce Commission, and by resolutions of the national convention of state railroad commissioners, led President Harrison, in his final message to Congress on December 5, 1892, to recommend the enactment of Federal legislation dealing with this subject. Under the common law doctrine the courts had generally held that the employees assumed the risks and hazards of the use of cars with different kinds of couplers.1 On March 2, 1893, Congress enacted

Thus a brakeman was held to be without a right of action on the ground that he had assumed the risk of injury in coupling two cars having